448.

Argument for Appellee.

authority exercised under any State, on the ground of their being repugnant to the Constitution, treaties, or laws of the United States." Consequently, we without jurisdiction to entertain the writ of error and it must be

Dismissed.

UNITED STATES v. ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY.

APPEAL FROM THE COURT OF CLAIMS.

No. 201. Argued March 11, 12, 1919. Decided April 14, 1919.

The Act of March 4, 1913, c. 143, 37 Stat. 791, 797, authorizing the Postmaster General to add, not exceeding 5 per cent. per annum, to the compensation of railroads, under certain pending contracts for transportation of mail, left the increases, within that limit, to his discretion; the plain import of the words used must control. P. 454.

52 Ct. Clms. 338, reversed.

THE case is stated in the opinion.

Mr. Assistant Attorney General Brown, with whom Mr. Leonard Zeisler was on the brief, for the United States.

Mr. Alex. Britton, with whom Mr. Evans Browne and Mr. Francis W. Clements were on the brief, for appellee, invoked the legislative history of the act to prove that an extra allowance of full 5 per cent. was intended, without giving any discretion to the Postmaster General to fix a smaller amount. This was so plain, especially if the act be taken as a whole and with others in pari materia, that it ought even to prevail against the letter of the enactment. (1) Blake v. National Banks, 23 Wall. 307;

Lapina v. Williams, 232 U. S. 78; (2) United States v. Freeman, 3 How. 556; Brown v. Duchesne, 19 How. 183; (3) Hawaii v. Mankichi, 190 U. S. 197, 212; Atkins v. Disintegrating Co., 18 Wall. 272; Heydenfeldt v. Daney Gold Mining Co., 93 U. S. 634; Holy Trinity Church v. United States, 143 U. S. 457.

In making this substituted provision, Congress used language legally identical with that employed in the basic statute fixing railway-mail rates, which language for more than forty years has been construed as requiring the payment by the Postmaster General of the rates named in the statute which he was "not to exceed❞— from all of which the conclusion is irresistible that Congress intended that the Act of March 4, 1913, should operate the same as had the Act of March 3, 1873. Wisconsin Central R. R. Co. v. United States, 164 U. S. 190, 205.

If any discretion was vested in the Postmaster General, it was to fix a flat increase not exceeding 5 per cent. for all routes. There appears no support for the theory that he was to increase the pay of one route 2 per cent., another 4 per cent., and so on. In allowing 5 per cent. increase to certain routes, the Postmaster General exercised whatever discretion was reserved to him, and he was bound by the law to make an equal allowance to all routes.

The method pursued by the Postmaster General of fixing the percentage of increase was not a valid exercise of discretion.

Memorandum opinion by MR. JUSTICE MCREYNOLDS.

During 1910 and 1911 the appellee railway company entered into customary arrangements with the Post Office Department to carry mail over a number of routes for quadrennial terms ending June 30, 1914, and 1915, com

pensation to be based upon ascertained weights. While these were in force, by Act of August 24, 1912, c. 389, 37 Stat. 557, Congress directed establishment of the parcel post service without providing for any additional compensation on account of the large increase in weights which would surely follow.

The Postmaster General called attention to the matter January 20, 1913; and after much consideration the following clause was incorporated in the Act of March 4, 1913, c. 143, 37 Stat. 791, 797:

"That on account of the increased weight of mails resulting from the enactment of section eight of the Act of August twenty-fourth, nineteen hundred and twelve,

the Postmaster General is authorized to add to the compensation paid for transportation on railroad routes on and after July first, nineteen hundred and thirteen, for the remainder of the contract terms, not exceeding five per centum thereof per annum, excepting upon routes weighed since January first, nineteen hundred and thirteen, and to be readjusted from July first, nineteen hundred and thirteen, until otherwise provided by law."

Acting under this provision, the Postmaster General refused to allow increased compensation of five per centum upon all routes, but apportioned payments among themnever in excess of five per centum-according to a carefully worked out formula which he deemed appropriate. Appellee sued for the difference between amount actually received and what it would have received if five per centum had been added. Considering history of the legislation and intent of Congress supposed to be indicated thereby the Court of Claims held that the act "required the Postmaster General to add 5 per cent. to the compensation being paid on all of said routes, and he having failed to do so that the plaintiff is entitled to recover the difference sued for." 52 Ct. Clms. 338, 361.

Argument for Plaintiff in Error.

249 U. S.

We are unable to agree with this conclusion. The language of the enactment is clear and we think it vested in the Postmaster General a discretion which, so far as shown by the record, has not been abused. We are not unmindful of the burden imposed upon appellee nor of the circumstances which lend color to a different conclusion; but these are not sufficient to justify a disregard of the plain import of the words which Congress deliberately adopted.

The judgment below must be reversed and the cause remanded with direction to dismiss the petition.

Reversed and remanded.

BARBOUR v. STATE OF GEORGIA.

ERROR TO THE SUPREME COURT OF THE STATE OF

GEORGIA.

No. 191. Submitted January 24, 1919.—Decided April 14, 1919.

One who acquires liquor after approval and before the effective date of a state law making its possession unlawful is not deprived by the law of his property without due process. P. 459.

It must be presumed that the liquor was acquired between those dates. when the date of acquisition is not shown. Id.

Whether such a law would be constitutional as applied to one who acquired liquor before its enactment-not decided. P. 460.

A federal question which was not decided by the State Supreme Court because not so raised as to evoke its decision under the local practice will not be decided by this court. Id.

146 Georgia, 667, affirmed.

THE case is stated in the opinion.

Mr. William W. Osborne and Mr. A. A. Lawrence for plaintiff in error:

454.

Argument for Plaintiff in Error.

Wine has from the dawn of civilization been a recognized article of commerce, useful in arts, mechanics and for scientific, medicinal and religious purposes. Its future acquisition may be prohibited, but until some statute has been passed to change its status it retains the status of property given by common consent of mankind through the course of centuries. Under that status it was clothed with the protection afforded by the guarantees of the Fourteenth Amendment, and we insist that the State cannot alter this status under the guise of declaring that that which it had theretofore declared to be property was not property, but a noxious and unwholesome nuisance.

The very statute itself contradicts the announcement of the court that intoxicating liquors are inherently a nuisance, for it recognizes the right of property and the right to possess various specified amounts thereof.

We submit that when duties and revenues are paid upon wines their value inheres in the wines and the owner has a property right under the United States. This value the court below says the State may destroy.

The decision under review announces a dangerous application of the doctrine that innocent transactions may be prohibited to prevent their use as an aid to thwart the particular object.

At the time the statute in question was passed it was unlawful in Georgia to sell wine. [See Code, § 426, Penal Code 1911, appendix (b).] One was permitted under the law to purchase and possess it for his own use or to be used in social intercourse. The effect of a law passed November 18th, to become effective May 1st, and construed as the court below has done, must have been to force the citizen either to consume his wines, which was an aid to insobriety, or to destroy them. This, we submit, was contrary to good morals and repugnant to the protection guaranteed by the Fourteenth Amendment.